Citation Nr: 21070003 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-00 567A DATE: November 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's tinnitus is attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1957 to March 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had also disagreed with the denial of service connection for diaphragm paralysis disability, left wrist fracture and headaches. These claims were addressed in the December 2018 Statement of the Case (SOC). However, the Veteran did not perfect his appeal as to these matters by filing a substantive appeal (his January 2019 VA Form 9, Appeal to Board of Veterans' Appeals (substantive appeal), was explicitly limited to the claims for service connection for tinnitus and bilateral hearing loss.) Thus, the matters of service connection for diaphragm paralysis disability, left wrist fracture and headaches are not before the Board at this time. In June 2018, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. In April 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. 1. Tinnitus Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See 38 U.S.C. § 5107(b). Certain chronic diseases (e.g., hearing loss and tinnitus as organic diseases of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system where there is evidence of acoustic trauma). The Veteran seeks service connection for tinnitus, which he believes is due to in-service noise exposure. He reported in his November 2015 VA Form 21-0958, Notice of Disagreement, that he believes his "service on an aircraft carrier where [he] was exposed on a daily basis without hearing protection to extremely loud noise such as: jet engines, propeller aircraft, hydraulic aircraft launch device, and 13 inch guns firing was the nexus of [his] current hearing loss and tinnitus." In addition, during his June 2018 DRO and November 2021 Board hearings, the Veteran also recalled noise exposure in his "compartment" which was located "right underneath the flight deck." He also testified that he had ringing in his ears at the time of noise exposure in service, especially when big guns would shoot from the deck. With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the October 2018 VA hearing loss and tinnitus examination report includes a diagnosis of tinnitus. The Board finds that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran's service treatment records do not reflect complaint of or treatment for tinnitus. However, his DD Form 214 shows that he had a primary specialty of airplane mechanic helper. Therefore, his reports of in-service noise exposure are consistent with his circumstances of service. In addition, he has stated that the condition had its onset during his active service. While it was reported in an October 2018 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) that the Veteran reported tinnitus had been present since he was 50 years old, the Board affords the Veteran the benefit of any doubt on this matter. Therefore, the Board finds that his tinnitus began during his active service. As a chronic condition, any subsequent manifestations are service connected unless clearly attributable to intercurrent causes. In this case, tinnitus has not been clearly attributed to intercurrent causes. Therefore, the evidence is at least in equipoise that Veteran's tinnitus is attributable to service as a subsequent manifestation of a chronic condition. Accordingly, service connection for tinnitus is granted. REASONS FOR REMAND 2. Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss was proximately caused by hazardous military noise exposure. As noted above, traumatic noise exposure in service is acknowledged because the Veteran served as an airplane mechanic helper (and the decision above grants service connection for tinnitus based such traumatic military noise exposure). The October 2018 VA examination report notes diagnoses of bilateral hearing loss by VA standards and includes the opinion that it is less likely than not that the Veteran's hearing loss in each ear is causally related to his active military service. In relevant part, the examiner explained that, other than inaccurate whispered voice testing, "[t]here is no other indication or documentation of hearing loss or ear trauma" and "VBMS indicates that, while the Veteran filed for multiple claims shortly after separation from AD [active duty] and in the following years, he did not file for hearing loss until 2014, more than 50 years after separation." In a January 2019 VA Form 21-4138, Statement in Support of Claim, it is argued by the Veteran's representative that the October 2018 opinion is not adequate because the examiner "did not acknowledge current research [regarding] delayed onset symptoms following hazardous noise exposure." In support of this statement, the representative referenced Sharon G Kujawa et al, "Adding insult to Injury: Cochlear Nerve Degeneration after Temporary Noise Induced Hearing Loss," 29 (45) J. Neuroscience 14077, 14078-79 (2009). Moreover, VA regulations provide that service connection may be warranted for a current hearing disability where there is sufficient evidence to demonstrate a relationship between the Veteran's military service and such hearing disability, even where the record lacks evidence of in-service audiometric testing establishing a diagnosis of hearing loss for VA purposes. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition, VA regulations further provide that service connection may be granted for any disease diagnosed after discharge where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). As such, the October 2018 VA opinion finding no causal link between the Veteran's current bilateral hearing loss and his military service based, even in part, on the 50-year gap from the time of his discharge from service and the receipt of his claim for service connection, is insufficient for rating purposes. Accordingly, remand is necessary to obtain another opinion as to whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. 2. After completion of the development requested in paragraph 1, the AOJ should obtain a supplemental opinion as to whether it is as likely as not that the Veteran's bilateral hearing loss disability is causally related to his active military service. The clinician is asked to specifically consider and address as necessary (1) the impact of the Veteran's in-service noise exposure, (2) take into consideration his lay statements of having noticed some hearing loss at the time of discharge from service (as reflected in the Veteran's Board hearing testimony), (3) the fact that he is now service-connected for tinnitus and (4) the medical treatise article reference in the January 2019 Statement in Support of Claim (Sharon G Kujawa et al, "Adding insult to Injury: Cochlear Nerve Degeneration after Temporary Noise Induced Hearing Loss," 29 (45) J. Neuroscience 14077, 14078-79 (2009)). The Board advises the clinician that the lack of service treatment records and the lack of filing a claim for service connection (including when other claims are filed) cannot be negative evidence (evidence against the claim), standing alone. Evidence of a current hearing loss diagnosis and a medically sound basis for attributing that disability to service where there is credible evidence of acoustic trauma due to significant noise exposure in service, may serve as a basis for a grant of service connection for hearing loss. The clinician should provide an adequate rationale for any opinion provided. If the clinician cannot render an adequate rationale without an examination, schedule the Veteran for such. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.